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53INTERNATIONAL LAW
RATIO OF INSTITUTE OF DIPLOMATIC PROTECTION WITH OTHER FORMS OF PROTECTION OF THE INDIVIDUAL'S RIGHTS
D. S. Gvozdetsky Senior lecturer of chair No. 501Moscow Aviation Institute (MAI)
Summary: The paper deals with the diplomatic protection of the rights of
individuals and businesses, making particular emphasis on the relationship of the rules of this institution with other forms of protection of the rights of the individual, as well as with the main provisions of consular assistance, the international protection of human rights and quasidiplomatic protection afforded by international intergovernmental organizations to their employees. Addressing many controversial issues of enforcement standards of institution of diplomatic protection it is offered to develop multilateral convention on diplomatic protection, which would include those provisions that has the least discrepancy.
Keywords: diplomatic protection, functional protection, retaliation, human rights,
international organizations, international protection of human rights.
Today in the Russian Federation and in many European states the institute of diplomatic protection is usually based on standards of international law. It has not received special attention from legislators yet1. In
1 Kovalev A.A. Aktualnyje voprosy diplomaticheskoj zashchity [Pressing Issues of Diplomatic Protection] // Moskovskij zhurnal mezdunarodnogo prava [Moscow Journal of International Law]. 2006. V. 64, No 4. P. 71.
2 Caflisch L. La pratique suisse de la protection diplomatique // La Protection Diplomatique /Ed. J.-F. Flauss. - Paris, 2003, p. 77.
this regard I think if 19 draft articles on diplomatic protection accepted by the International Law Commission of the UN in 2006 find a form of convention with its subsequent signing, many European states for practical implementation of provisions of this act will face the need of completion of available legal gaps in the domestic legislation.
It is necessary to pay attention to the fact that modern research of institute of diplomatic protection are limited by classical questions of protection of the rights of physical and legal entities, thus studying a ratio of norms of this institute with other forms of protection of the rights of the individual in science and practice is almost absent.
In this article the ratio of institute of diplomatic protection with basic provisions of consular assistance, the international protection of human rights, and also the quasidiplomatic protection provided from the international intergovernmental organizations to the employees (further in the text - functional protection) is the aim of research.
The practical importance and the purpose of this comparative research consists in disclosure of a problem of realization of diplomatic protection in practice and carrying out an accurate side of distinction of concepts of diplomatic protection against other concepts of international laws also relating to protection of individuals and assigning particular obligations of erga omnes to subjects of international law.
This comparative research allows to determine a legal regime of procedure of providing diplomatic protection by law-enforcement government bodies of external relations, its difference from other conventional procedures provided by international treaties. In this regard it is possible to designate some starting positions of institute of diplomatic protection in the ratio with other forms of protection of the rights of the individual.
Considering the provision of consular assistance and diplomatic protection it should be noted their following features:
1) The limited nature of consular functions provided in the Vienna convention of 1963 about the consular intercourses in comparison with broader functions of diplomats specified in the Vienna convention of 1961 about the diplomatic intercourses.
2) Distinction in representation level in cases of consular assistance and diplomatic protection. Thus diplomatic protection represents the interstate intervention which is carried out by diplomats in the case when harm as a result of the international and illegal act made by other state is done to the citizen or the legal entity. Such intervention is aimed at correction of the international and illegal act. It can accept the most various forms, including a protest, negotiations and judicial settlement of a dispute. In turn consular assistance represents
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assistance to citizens (probably also to stateless persons and refugees) who get into difficulties in a foreign state. The assistance is provided by the professional or honorary consuls who aren't engaged in political representation.
3) Consular assistance has generally a preventive character and it is provided before exhaustion of internal remedies or before violation of norms of international law. Owing to this fact consular assistance is less official than diplomatic protection, and more acceptable to a host-country2.
4) Consular assistance is connected, mainly, with protection of the rights of the individual, and its rendering requires consent of a corresponding person3 (the standard provision of Art. 36 of the Vienna convention on the consular intercourses of 1963) while diplomatic protection can be provided to the individual without his consent.
5) Consular assistance assumes rendering protection to physical and legal entities on their behalf and on the conditions determined by the Vienna convention on the consular intercourses of 1963 by the state. In case of providing diplomatic protection the state acts on its own behalf on a basis of the rights of protected physical and legal persons. These rights have passed to the state.
From consideration of provisions of consular assistance and diplomatic protection, it is possible to draw a conclusion that rules of law of considered institutes regulate only general matters without regulating the procedure of consular assistance and diplomatic protection for physical and legal entities.
Owing to the lack of conventional regulation of these forms of protection of the rights of the individual, government bodies of external relations cannot always render effective protection to their physical and legal entities.
In this regard it should be noted that it is expedient to point to the distinction of provisions of consular assistance and diplomatic protection in the draft of the international act of diplomatic protection from 19 articles. This draft was developed in 2006 by the UN International Law Commission. It is necessary to state Article 1 of that edition:
1) Diplomatic protection consists of diplomatic measures or application of other means of peaceful settlement from the state acting on its own behalf in interests of the individual, being its citizen, or the legal entity having its nationality, in connection with causing them harm as a result of international and illegal act of another state.
3 Zourek J. Quelque problemes theoriques du droit consulaire//Journal du Droit International. 1963. Vol. 90. Pt. 4. P. 54-55.
4 Thus, according to Phil Kaye, diplomatic protection is based on the obligations imposed by international law on states to guarantee foreigners, who are on their territories, treatment not below a certain minimum standard.
2) Diplomatic protection shouldn’t be interpreted as including rendering consular assistance according to international law.
Alongside with it in practice the work of staff of diplomatic missions and consular establishments in the sphere of protection of the rights of citizens is facilitated by the fact that democratic states provide foreigners in their territory with a certain minimum of rights4, which consists of provisions of the international treaties concerning human rights. In turn, diplomatic protection shouldn't be confused with the matters of protection of human rights though some regulations on the international protection of human rights are included in regulatory enactments of institute of diplomatic protection.
The international protection of human rights is a broader concept than institute of diplomatic protection as it includes: legal, political, economic, social, cultural and other issues. So, the international protection of human rights means providing a certain standard of human rights in various areas of public life, which is recognized by international human rights structures, fixed at interstate and international level and accepted to execution by all subjects and participants of the international relations.
Study of the situation in a number of regions of the world allows to draw a conclusion that internal conflicts and poverty, as a rule, are destiny of the countries in which democratic standards and human rights are violating5. As for the rights of foreigners, similar violations are often promoted by unfair work of the staff of diplomatic missions operating in the territory of foreign states. For example, numerous requests of Russian citizens to protect their constitutional laws sent to the Russian diplomatic mission in the territory of Latvia remained in most cases ineffective.
Institute of international protection of human rights, as well as diplomatic protection represent the system of legal norms directed to achievement of a certain legal result. These norms order behavior of subjects of international law and its participants, they give the chance to know what this or that subject has to do, and what it can end up. Thereby the similar actions are predictable, they give the chance to supervise behavior of a subject of the international law and to a certain extent limit his arbitrary behavior.
The international mechanisms fixed by a number of international agreements in the field of the rights of the personality (for example, Convention's provisions of 1950 about protection of human rights and fundamental freedoms and 12 additional protocols to it, including the protocol on abolition of the death penalty) are a necessary element and an additional guarantee of protection of the
5 Kartashkin V.A. Prava cheloveka: mezhdunarodnaja zashchita v uslovijakh globalizatsii [Human Rights Protection in the Globalization Conditions]. - Moscow: Norma, 2009. P.8
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individual's rights. Alongside with it the activity of international control bodies in this field (for example, the UN Human Rights Committee, The Office of the High Commissioner of the UN on Human Rights, etc.) is not effective enough for a number of reasons. The main thing is that the international documents on human rights don't authorize similar bodies to pass obligatory decisions to the states.
In this regard the states should surrender of a part of the sovereign rights and be determined to give authority to the international bodies on human rights.
As distinct from the international recommendations directed by human rights committees to the authorities of the states violating standards of human rights, the positions of institute of diplomatic protection are based on instructions to respect the rights and freedoms of the individual for which violation certain measures of impact on the offender follow.
So, if in practice the positions of institute of diplomatic protection aren't observed, the state concerned has the right to apply measures of impact on the offender. Retortions, measures which aren't going beyond the international law, can be used in this situation. They are usually applied in response to unfair, discriminatory actions.
Generalizing the abovementioned it is necessary to highlight general features of institute of international protection of human rights and standard provisions of diplomatic protection.
1. Focus on achievement of a legal result, i.e. recognition (official establishment), realization and ensuring protection of the right of the individual.
2. The government and international bodies and their officials, and also other participants of the international relations authorized to work in legal interest of others are obligatory participants (addressees) of a procedural regulation.
3. The official legal nature of a procedure of providing protection, primary and secondary nature of its norms.
4. Preliminary official definiteness of procedural norms.
5. Proof existence as an element of a procedural regulation.
6. Legal consequences of non-compliance with procedural requirements.
The results of comparison of institutes of international protection of human rights and diplomatic protection allow to issue the concept of international protection of human rights, and also to highlight differing and similar provisions of these two institutes.
Considering the norms of international civil servants' (employees') diplomatic protection from the state and the provisions of functional protection by the international intergovernmental organizations of their employees, it is necessary to pay attention to the following legal criteria of binding (priority).
I. Priority of providing functional protection from the international intergovernmental organization to the employees consists in the following:
- the employee was on duty at the time of causing him harm. In this case the organization has to claim responsibility for protection of the employee. It is important for the organization to show the potential employees its desire to offer protection, and it is impossible to leave it to the discretion of the state of nationality which cannot always wish or be able to provide the corresponding protection;
- in most cases the state of nationality isn't interested in upholding the requirement about compensation of harm to its citizen, an employee of an international organization considering the expenses connected with it, its ignorance of all the facts of the case and probability to damage the relations with the respondent state.
II. Priority of providing diplomatic protection from the state of nationality to an employee of the international organization arises in the cases, when:
- harm is inflicted to an employee of an international organization when he is not on duty but, for example, when he is on holiday in the third country;
- an international organization is not able to provide functional protection to its employee if the latter doesn't correspond to the criteria of protection;
- constituent documents of an international organization need not recognize protection of its employees as a whole or in private circumstances of this case.
It is seen from the above that at procedure of implementation of diplomatic protection there are two competing factors - the principle of nationality of an employee of the organization and the principle of mutual loyalty of the international organization and its employee. While defining of the one who has to carry out protection - the international organization or the state of nationality - the criterion of priority determined by what an international and illegal act is directed against( against the organization or the state of nationality) has to be used.
When providing diplomatic protection subjects of the international law have the right to use any legal ways and means stipulated by modern international law, such as diplomatic negotiations, diplomatic intervention, appeals to international judicial authorities, etc.
General matters of institute of diplomatic protection and its ratio with other forms of protection of the rights of the individual are considered in this article. These matters are to be looked into in order to define the sphere and a practical procedure of this form of protection.
As the recommendation it is possible to suggest that an order of providing diplomatic protection from the authorized government body, and in some cases from international ones should be included in the text of the Vienna convention on the diplomatic intercourses of 1961. This order includes the following stages:
a)before directing a claim from the subject of the international law to the respondent state or the international intergovernmental organization which has made an international and illegal action, it is necessary to estimate the validity of this claim and to give accurate interpretation of the rule of law which, according to the dissatisfied party was broken;
b) an official presentation of a claim to the respondent state or the responsible international intergovernmental organization;
c) providing the subject of international law with the respondent of restoration of the violated rights, and also his compensations of the damaged harm to the state, his physical and legal entities including compensation payment. This procedure is also applicable to the international intergovernmental organizations.
It is necessary to pay attention to the fact that the ideal option at the solution of many controversial issues of right application of the norms of institute of diplomatic protection would become preparation of the multilateral convention on diplomatic protection in which those provisions having the least disagreements should be included.
